Citation Nr: 25005272 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 12-25 831 DATE: April 17, 2025 ORDER Entitlement to an effective date prior to November 12, 2015 for the award of a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, is denied. Entitlement to an effective date prior to November 12, 2015 for the award of basic eligibility to Dependents Educational Assistance (DEA), pursuant to 38 U.S.C. Chapter 35, is denied. REMAND Entitlement to service connection for a cervical spine disability, to include on a secondary basis, is remanded. FINDINGS OF FACT 1. Prior to November 12, 2015, the evidence of record does not reflect that the Veteran was unable to secure or follow substantially gainful employment as a result of his service-connected disabilities. 2. The Veteran was not rated as permanently and totally disabled prior to November 12, 2015, for the purposes of basic eligibility to DEA benefits. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to November 12, 2015 for the award of entitlement to a TDIU, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.400, 4.16. 2. The criteria for an effective date prior to November 12, 2015 for the award of basic eligibility to DEA benefits under 38 U.S.C. Chapter 35 have not been met. 38 U.S.C. §§ 3510, 5110, 5113; 38 C.F.R. §§ 3.340, 3.807, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1969 to March 1970, with additional service in the Air Force National Guard and Army National Guard. The Veteran died in August 2021. See August 2021 Death Certificate. The appellant, the Veteran's surviving spouse, has been properly substituted in this case. See January 2022 Notification Letter (e.g., VA Form 20-8993, VA Form 21-0290, PCGL). These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2017 and November 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2013, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) who is no longer employed with the Board. Thereafter, the Veteran requested a new Board hearing in May 2014, and in June 2015, he testified at a Board hearing before the undersigned. The issues address during the February 2013 and June 2015 Board hearings included his claim of entitlement to a TDIU. Copies of the transcripts of both hearings have been associated with the claims file. The Veteran also testified at a Board hearing before a VLJ who is no longer employed by the Board in June 2021. The issues addressed during the hearing included, in pertinent part, entitlement to service connection for a cervical spine disability and entitlement to an earlier effective date for the award of entitlement to a TDIU. A copy of the transcript of that hearing has also been associated with the claims file. Thereafter, the appellant testified at a Board hearing before the undersigned in September 2022 to address all issues included herein. A copy of the transcript of that hearing has also been associated with the claims file. The Board further notes that the appellant requested another hearing before the Board in December 2023. See December 2023 Third Party Correspondence. However, in a January 2022 letter, the appellant, through her representative, stated that she would not attend her scheduled Board hearing and did not want the hearing to be rescheduled. See August 2024 Correspondence. As such, the appellant's request for a Board hearing is deemed withdrawn. See 38 C.F.R. § 20.704(e). By way of background, the claims of entitlement to effective dates prior to November 12, 2015 for the awards of entitlement to a TDIU and to basic eligibility to DEA benefits under 38 U.S.C. Chapter 35, were initially before the Board in July 2022, when they were remanded for additional development. See July 2022 BVA Decision. In addition, the issues addressed herein, to include the Veteran's claim of entitlement to service connection for a cervical spine disability, were last before the Board in September 2023, when they were remanded for additional development. See September 2023 BVA Decision. In this regard, the Board recognizes that the September 2023 decision deferred adjudication of the claim of entitlement to a TDIU, and in doing so, noted that the claim of entitlement to service connection for a cervical spine disability was being remanded. See September 2023 BVA Decision. However, upon further review, the Board notes that the Veteran filed his claim of entitlement to service connection for a cervical spine disability in November 2016. See November 2016 VA Form 21-526EZ, Fully Developed Claim (Compensation). Pursuant to 38 C.F.R. § 3.400(b)(2)(i), unless specifically provided otherwise, the effective date of an award based on a claim for service connection benefits is fixed in accordance with the facts found but, cannot be earlier than the date of receipt of application for such benefits. Thus, even assuming without deciding that the Veteran's claim of entitlement to a cervical spine disability is granted, there is no scenario in which an effective date prior to November 2016 can be assigned for such. Thus, the Board finds that the outcome of the claims for entitlement to effective dates prior to November 12, 2015 for the awards of entitlement to a TDIU and to basic eligibility to DEA, pursuant to 38 U.S.C. Chapter 35, are not inextricably intertwined with the remaining claim of entitlement to service connection for a cervical spine disability and that a full adjudication of the issues is both possible and proper. The Board notes that the appellant's attorney was not copied on the October 2023 supplemental statement of the case (SSOC). However, in August 2024, the appellant's attorney demonstrated actual knowledge of the SSOC. In this regard, the attorney specifically referenced the October 2023 SSOC and noted that they "should have never requested another hearing after the October 2023 SSOC." Therefore, as actual knowledge of the SSOC has been demonstrated, a remand is not necessary to provide the appellant's attorney a copy. Lastly, the Board notes that the appellant filed a timely appeal to a September 2022 rating decision for the issues of entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 and entitlement to service connection for the cause of the Veteran's death. See September 2022 Rating Decision - Narrative; June 2022 Rating Decision Narrative; October 2022 VA Form 10182 Notice of Disagreement. The Board notes that the Veteran appealed the abovementioned claims pursuant to the Appeals Modernization Act (AMA), while the claims addressed in this decision remain under the Legacy Appeals System. By law, AMA appellate streams cannot be merged with legacy claims, and as a result, those issues will be addressed in a separate decision under a different docket number. 1. Entitlement to an effective date prior to November 12, 2015 for the grant of entitlement to a TDIU, to include on an extraschedular basis, is denied. By way of background, in an August 2013 decision, the Board found that the issue of entitlement to a TDIU had been raised by the record. See August 2013 BVA Decision. As such, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the claim for entitlement to a TDIU is considered part and parcel to the Veteran's claim for entitlement to an increased rating for degenerative disc disease of L5-S1 (lumbar spine disability), which was received by the Agency of Original Jurisdiction (AOJ) on March 15, 2004. See March 2004 VA Form 21-4138 Statement in Support of Claim. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). TDIU will be granted when the evidence shows that the veteran, due to service-connected disabilities, is precluded from obtaining or maintaining any gainful employment consistent with their education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) above. Prior to November 12, 2015, the Veteran was awarded service connection for the following disabilities: a lumbar spine disability rated as 40 percent disabling as of March 15, 2004; right lower extremity radiculopathy rated as 10 percent disabling from February 16, 2005 to November 12, 2015; radiculopathy of the left lower sciatic nerve rated as 10 percent disabling as of September 30, 2008; tinnitus rated as 10 percent disabling as of January 23, 2003; bilateral hearing loss rated as noncompensable from January 23, 2003; and surgical scar of the back rated as noncompensable from January 16, 2014. Thus, during the period on appeal, the Veteran's combined disability rating was 50 percent from March 15, 2004 to September 30, 2008 and 60 percent from September 30, 2008 to November 12, 2015. See November 2018 Rating Decision - Narrative. As such, he has not met the schedular criteria for a TDIU for the entire period on appeal. See 38 C.F.R. § 4.16(a). As the Veteran did not meet the schedular criteria, the AOJ referred the appeal to the Director of Compensation Service (Director) for consideration of assignment of an extraschedular TDIU under the provisions of 38 C.F.R. § 4.16(b). See 38 C.F.R. § 4.16(b). In October 2018, the Director reviewed the record and opined that entitlement to an extraschedular TDIU was not warranted because none of the available objective evidence showed that any of the Veteran's service-connected disabilities, or a combination of the effects of those disabilities, prevented him from performing all types of gainful activity during the relevant period. The Board notes that the Director's opinion is not dispositive and is reviewable by the Board. See Ray v. Wilkie, 31 Vet. App. 58, 62 (2019); see also Wages v. McDonald, 27 Vet. App. 233 (2015) (explaining that the Director does not have nonreviewable discretion, and the Board has the jurisdictional authority to review the Director's extraschedular decisions). Turning to the evidence of record, a December 1991 vocational rehabilitation closure review summary shows that the Veteran referred himself for vocational rehabilitation services in August 1991 with disabilities of adjustment disorder with depressed mood and a secondary diagnosis of alcohol abuse with mixed substance abuse. However, the summary indicates that the Veteran's case was closed after he failed to respond to his counselor's requests for contact. See August 1991 Medical Treatment Record - Furnished by SSA. In an April 1994 decision, the Social Security Administration (SSA) found that the Veteran had been totally disabled within the meaning of the Social Security Act since January 1993. Specifically, SSA found that the Veteran had severe chronic lumbar and cervical strain, status-post motor vehicle accident, dysthymia, personality disorder, and alcohol use disorder. In this regard, SSA determined that he endured significant physical pain and could not lift and carry anything in excess of ten pounds. In addition, SSA found that the Veteran's diagnosed dysthymia, personality disorder, and substance abuse disorder moderately restricted his activities of daily living, created moderate difficulties in maintaining social functioning, frequently resulted in deficiencies of concentration, persistence or pace, and had on one or two occasions resulted in deterioration or decompensation in work or work-like settings. Thus, although SSA found that the Veteran had the exertional capacity for sedentary work, such was reduced by chronic pain and psychological impairments. Thereafter, a cessation or continuation of disability determination and transmittal form from SSA shows that the Veteran's SSA disability benefits ceased in September 1997. However, the evidence of record indicates that his SSA benefits were subsequently reinstated on June 30, 2002 and remained in effect until his death. See, e.g., August 1991 Medical Treatment Record - Furnished by SSA. During a February 2004 audiological evaluation, the Veteran reported communication difficulties and explained that he could "hear but not understand speech[.]" See February 2003 VA examination; February 2004 VA examination. In October 2004, the Veteran reported low back pain and indicated that a private physician had diagnosed him with degenerative disc disease. However, an x-ray of his lumbosacral spine obtained at that time was normal. See November 2018 CAPRI. In February 2005, the Veteran reported that he had not been able to work for three years but indicated that he previously performed manual labor. Thereafter, during a March 2005 physical therapy outpatient consultation, he reported that he was disabled due to pain, which limited all activities other than self-care, and stated that he only performed minimal activity, to include watching television and taking care of his dogs. See February 2022 CAPRI. In addition, during a November 2006 allergy and immunology consultation, the Veteran reported that he had retired from his career as a baker. However, he also stated that he had 21 dogs and explained that he raised Pomeranians. See July 2022 CAPRI. In December 2006, the Veteran testified at a Board hearing in support of a claim of entitlement to service connection for a lumbar spine disability. During the hearing, the Veteran endorsed daily lower back pain, which was exacerbated by driving for long periods, and indicated that his symptoms prevented him from performing activities for more than 30 minutes at a time and affected his ability to sleep at night. He also testified that he had stopped working and noted that he was receiving SSA disability benefits for his lumbar spine disability. See December 2006 BVA - General, pages 6-7, 12. The Veteran underwent a VA examination for back conditions in March 2012. During the examination, the Veteran reported stiffness and constant lower back pain and explained that his symptoms could be worsened by activity and after sitting for prolonged periods. He also stated that his symptoms made it difficult for him to sleep and bend forward. Following the examination, the examiner found that the Veteran's service-connected lumbar spine disability would prevent him from standing or walking for more than 30 minutes and made it difficult for him to sit for prolonged periods. In this regard, the examiner noted that the Veteran reportedly left a job at a phone bank because he had been unable to tolerate the sitting. See March 2012 VA examination. During his February 2013 Board hearing, the Veteran testified that his service-connected lumbar spine disability and radiculopathy of the left and right lower extremities prevented him from standing or walking for more than 30 minutes and from driving for more than 10 to 30 minutes without pain or discomfort. In addition, he reported difficulty sleeping, climbing stairs, reaching forward, and bending to pick up objects, and noted that he often needed assistance lifting objects and when standing from the ground. The Veteran further testified that he had been using a cane for five to seven years but reported that he was still able to vacuum, do dishes, and shop. See February 2013 Hearing Transcript, pages 2-15. In support of his claim, the Veteran submitted a private orthopedic evaluation from Dr. Graf dated in April 2013. After performing the evaluation and reviewing the evidence of record, Dr. Graf found that the Veteran was 100 percent impaired by his service-connected lumbar spine disability. In this regard, Dr. Graf found that the Veteran met the criteria for intervertebral disc syndrome (IVDS) with incapacitating episodes of at least six weeks during the preceding 12 months and stated that both urinary retention and anticipated planned surgical intervention were present. See June 2013 Medical Treatment Record -Non-Government Facility. The Veteran underwent VA examinations for back conditions and peripheral nerve conditions in January 2014. During the examinations, the Veteran endorsed pain with sitting or standing for more than 30 minutes and back pain with long distance driving. After performing the examinations and reviewing the evidence of record, the examiner opined that the Veteran's service-connected lumbar spine disability and lumbar radiculopathy were manifested by frequent pain and limitation of range of motion, which would limit his ability to perform heavy lifting, frequent bending, twisting, carrying, crouching, and squatting, on a continued basis during a normal workday. In addition, the examiner stated that the Veteran would have trouble performing occupational activities that involved prolonged sitting or standing in one position. However, the examiner found that the Veteran's lumbar spine disability and lumbar radiculopathy did not absolutely prevent him from an appropriate sedentary occupational position that allowed him to take frequent breaks and changes of position. In this regard, the examiner found that the Veteran was able to drive a car, had no difficulty with upper extremity fine motor coordination, and that his daily schedule included taking care of his dog and rabbit, light housework, and cooking. He further stated that the Veteran completed one and a half years of college, during which he majored in computer programming, and noted that he worked as a fulltime and parttime baker and assistant manager at a donut shop from 1968 to 1999, as a machinist at a Navy shipyard from 1980 to 1982, and as a manager at a restaurant from 1999 to 2000. Thus, the examiner found that the Veteran was capable of performing part time sedentary employment with a flexible work schedule. See February 2022 CAPRI. The Veteran was also afforded a VA examination for hearing loss and tinnitus in January 2014. During the examination, the Veteran reported that he needed visual cues in all situations to understand what people were saying, and the examiner subsequently acknowledged that the Veteran's hearing loss would make work more difficult but would not preclude him from employment. Similarly, the Veteran reported that his service-connected tinnitus drove him "nuts[,]" but the VA examiner found that it would not impact his ability to work. See January 2014 VA examination. During his June 2015 Board hearing, the Veteran reported that his service-connected lumbar spine disability had worsened since his January 2014 VA examination and noted that it was getting progressively more difficult for him to "get up and get around." In this regard, he endorsed difficulty bending forward at the waist and from side to side, chronic sleep impairment related to pain, and severe, episodic back pain during which he had to rest on the couch or in bed for extended periods of time. He also noted that he took pain medication every day, often used a cane, and occasionally wore a back support to manage his symptoms. The Veteran further stated that his service-connected hearing loss and tinnitus impaired his ability to understand speech, to include when the speaker was seated right next to him, and indicated that such would make it difficult, and likely unsafe for him to work in restaurant kitchens. The Veteran further testified that he was last employed as an assistant manager at a restaurant but indicated that he left that position shortly after he was hired into the roll because he was unable to meet the physical demands of the job. Specifically, he explained that he was unable to stand and walk as often as the job required and indicated that the medications he used to manage his pain could have caused him to be less alert than he felt was necessary. With regard to his occupational history, the Veteran reported that he worked at a donut shop for 35 years as well as in a machine shop at a naval shipyard. He further stated that he graduated from high school and subsequently attended a vocational school in computers for approximately 18 months. However, he explained that he left the program before he received a certificate or degree because sitting for long periods in school had "bothered" him. In addition, the Veteran testified that he was not able to drive when taking medications to treat his service-connected disabilities. See June 2015 Hearing Testimony, pages 2-17. In support of his claim, the Veteran submitted an employment evaluation from S. McCarron, a certified vocational rehabilitation counselor, dated in January 2016. After reviewing the evidence of record, McCarron found that, in the absence of current information from the Veteran relative to employability, it did not appear that he had the functional capabilities to meet the demands of work at the time of the evaluation. In support of her opinion, McCarron noted that Dr. Graf found that the Veteran's service-connected disabilities prevented him from working and rendered him disabled in his April 2013 private orthopedic evaluation. In addition, she noted that the February 2014 hearing transcript showed that the Veteran reported difficulty walking after approximately 30 minutes, driving after more than 10 to 30 minutes, ascending stairs, reaching or bending forward, doing regular household chores, and shopping due to pain and discomfort. She further noted that he had been ambulating with a cane for approximately five to seven years and estimated that he could lift approximately five to ten pounds. See March 2016 Correspondence. However, although McCarron found that the Veteran was disabled at the time of the evaluation, she did not proffer an opinion as to whether the Veteran was unable to obtain or follow any substantially gainful employment during the period on appeal prior to November 12, 2015. In May 2016, the Veteran reported that his service-connected lumbar spine disability prevented him from securing or following any substantially gainful employment. In this regard, he explained that his disability began affecting his ability to work in June 1991 but indicated that he became too disabled to work, and last worked fulltime, in July 2000. However, he subsequently stated that he was last employed fulltime, working 40 hours per week, at a restaurant from 1999 to 2001 and denied losing any time due to illness. In addition, the Veteran noted that he completed one year of college and received additional education and training in computers after he became too disabled to work, though he went on to explain that such required too much travel and sitting for his service-connected lumbar spine disability. See July 2016 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. VA obtained a medical opinion in July 2016. After performing a VA examination for back conditions and reviewing the evidence of record, the examiner acknowledged that the Veteran's service-connected lumber spine disability and radiculopathy of the right lower extremity impacted his ability to work but found that he could tolerate occupations, such as sedentary clerical or telephone work, that had planned breaks and did not requirement him to perform spinal lumbar tasks. In support of his opinion, the examiner acknowledged that the April 2013 private orthopedic evaluation completed by Dr. Graf found that the Veteran had a progression of an intervertebral disc change with a planned laminectomy discectomy one week later, but emphasized that, from that time onward, his medical records were silent for any evidence showing progressive back or neurologic sequelae, to include a notable lack of available records from neurologic, neurosurgical, or orthopedic specialist for spinal care. He further noted that there were no electromyographies or nerve conduction studies available in the evidence of record. However, the examiner also acknowledged that the Veteran had been continuously dependent on SSA disability benefits since 1999 but noted that such had been awarded based on multiple medical issues, to include his nonservice-connected severe obstructive lung disease, per the Veteran and his wife's current report. However, the examiner also found that the Veteran's service-connected lumbar spine disability was manifested by chronic back pain, which limited his ability to stand for more than approximately 30 minutes and precluded repetitive bending activities in the absence of any weight bearing and any activities that required walking, partially based on back pain and other co-morbid conditions. In addition, the examiner found that the Veteran's right lower extremity radiculopathy symptoms included numbness and dull ache in the medial part of the right leg. He also noted that range of motion of the Veteran's lumbar spine was moderately severely limited and would prevent him from performing tasks that required flexibility of the lumbar spine. In addition, the examiner found that the Veteran's ability to drive long distances was limited by his bilateral radicular symptoms and persistent right leg numbness. However, the examiner also found that the Veteran could tolerate occupations, such as sedentary clerical or telephone work, that had planned breaks and did not require him to perform spinal lumbar tasks. However, the examiner also indicated that the Veteran's other medical conditions may impose extra limitations. See July 2016 C&P examination. An August 2016 request for employment information in connection with claim for benefits form shows that the Veteran worked at a restaurant from September 2001 to May 2002. See August 2016 VA 21-4192 Request for Employment Information in Connection with Claim for Disability. In a May 2018 determination, the Director found that the Veteran's service-connected disabilities, to include a combination of the effects thereof, did not prevent him from performing all types of gainful employment during the period from March 15, 2004 to November 12, 2015. In this regard, the Director noted that the Veteran was service connected for degenerative disc disease of the lumbar spine rated as 40 percent disabling from March 15, 2004, right lower extremity neuropathy rated as 10 percent disabling from March 1, 2012, tinnitus rated as 10 percent disabling from March 15, 2004, and bilateral hearing loss rated as 0 percent disabling from March 15, 2004. In support of her opinion, the Director stated that the Veteran worked for a period of more than 30 years in various bakeries and restaurants. She further noted that he was found to be entitled to SSA disability benefits in the early 1990s due to back problems, neck problems, dysthymic disorder, and personality disorder, though the evidence of record showed that he worked for a few years in the late 1990s, which caused his SSA disability benefits to be cut off and later reinstated for back and personality disorders. In this regard, she emphasized that the Veteran had not been awarded service connection for any psychiatric disorders. In addition, the Director noted that outpatient treatment records dated from 2004 to 2015 showed consistent complaints of back and neck pain, but emphasized that service connection had not been established for a cervical spine disability. She further reported that the Veteran had one surgery for his service-connected lumbar spine disability in 2013 and that he ambulated with a cane due to his service-connected lumbar spine disability and a nonservice-connected knee disability. Thus, the Director found that the private medical opinions submitted by the Veteran alleging that he was permanently disabled were not supported by the objective medical evidence of record. To the contrary, she found most of the examinations conducted during the relevant period showed that the Veteran's service-connected lumbar spine disability prevented him from performing heavy and medium physical work that required long periods of standing. In this regard, the Director acknowledged that Dr. Graf found that the Veteran had experienced several incapacitating episodes due to back pain but emphasized that his medical treatment records did not show any bed rest prescribed by a physician during the period of review. She further emphasized that, apart from treatment records showing that the Veteran had a history of back surgery in 2013, the medical evidence of record did not indicate that the Veteran was hospitalized or underwent any surgical procedures for his service-connected disabilities during the relevant period or that he received any intensive outpatient treatment related thereto. In addition, the Director acknowledged that the Veteran consistently complained of pain in his back and numbness in his legs during the period on appeal, but found that his right lower extremity neuropathy was consistently described as mild and that muscle strength in his lower extremities was noted to be normal during all VA examinations conducted during the relevant period. In addition, the Director stated that the medical evidence indicated that the Veteran's hearing loss and tinnitus did not significantly impact employment during the period on appeal. Thus, the Director found that the available objective medical evidence did not support the Veteran's contention that his service-connected disabilities, or a combination of the effects thereof, prevented all types of gainful employment. As such, she found that entitlement to a TDIU was not established for the period on appeal from March 2004 to November 2015. See October 2018 Miscellaneous C&P Correspondence. During his June 2021 Board hearing, the Veteran reported that he last worked as a night manager at a restaurant in or around May 2002. He further explained that he took the position because SSA terminated his benefits, and indicated that he continued working in that position, despite pain, until he was able to re-establish entitlement to SSA disability benefits. In this regard, he noted that he left his last job due to his service-connected disabilities, even though it was an "easy job" that just required walking. The Veteran also acknowledged that he completed a year and a half of college and explained that he previously worked at a machine shop and as a baker but indicated that symptoms caused by his service-connected disabilities, to include difficulty traversing stairs, walking, bending, lifting, standing up, and sitting, and medications used to treat such disabilities, caused functional impairment and led him to take frequent breaks. See June 2021 Hearing Transcript, pages 3-6, 12-15, 23-24. The appellant testified at a Board hearing in September 2022. At that time, she reported that the Veteran stopped leaving the house on his own in or around 2011, due to decreased mobility. In this regard, she explained that the Veteran occasionally used a wrap for his legs and had been walking with a cane since 2011. In addition, the appellant testified that the Veteran began receiving SSA disability benefits in the early 1990s but noted that he had previously worked as a baker in the food service industry and at a restaurant for under one year in the early 2000s. In this regard, although she acknowledged that Veteran attended some college, she emphasized that he did not earn a degree, that his employment history was limited to work in the food service industry, and that a vocational rehabilitation program had unable to retrain him. See September 2022 Hearing Transcript, pages 8-11, 13-19; see also September 2022 Hearing Transcript, pages 4-6. Lastly, the appellant submitted a vocational assessment from K. MacDillon, a vocational counselor and life care planner, dated in October 2024. After reviewing the evidence of record, MacDillon opined that it was more likely than not that the Veteran had been unable to secure or follow substantially gainful employment, including unskilled and sedentary employment, due to his service-connected disabilities since at least May 2002. In support of her opinion, MacDillon explained that even sedentary work required occasional standing and walking for up to 1/3 of the workday, as well as sitting most of the time. In this regard, she stated that the evidence of record showed that the Veteran's service-connected disabilities prevented him from standing, walking, and sitting for more than 20 to 30 minutes at a time and found that such limitations were inconsistent with the exertional demands of even sedentary employment, as defined by the Department of Transportation. Rather, MacDillon indicated that the Veteran had a documented history of weakness, instability, and falls related to his service-connected disabilities and found that such would not be tolerated in competitive work and would be considered a safety liability. As such, MacDillon found that the Veteran's inability to perform prolonged standing, walking, and sitting due to his service-connected disabilities had precluded him from performing even sedentary work since at least May 2002. In addition, MacDillon found that the Veteran's back pain, weakness, instability, and numbness would cause him to become distracted throughout the workday, leading to excessive time off task. She further found that his concentration impairment would preclude him from retaining information. Thus, MacDillon found that the limitations caused by the Veteran's service-connected disabilities precluded him from meeting the requirements of securing or following substantially gainful employment at any skill or exertional level. See November 2024 Medical Treatment Record - Non-Government Facility. After a thorough review of the evidence of record, the Board finds that the evidence does not show that the functional limitations imposed by the Veteran's service-connected disabilities, to include a lumbar spine disability, radiculopathy of the right and left lower extremities, tinnitus, bilateral hearing loss, and surgical scar of the back, alone, rendered him unable to perform the mental or physical tasks necessary to follow a substantially gainful occupation prior to November 12, 2015. In this regard, the Board recognizes that the Veteran's service-connected bilateral hearing loss disability interfered with his ability to understand speech and led him to rely on visual cues in all situations. However, the Board notes that none of the examiners of record found that the Veteran's bilateral hearing loss or tinnitus precluded him from obtaining or maintaining employment; to the contrary, the January 2014 VA examiner explicitly found that the Veteran's service-connected hearing loss and tinnitus did not preclude employment. See February 2003 VA examination; February 2004 VA examination; January 2014 VA examination; June 2015 Hearing Testimony, pages 16-17. Thus, the Board finds that the Veteran could work in environments where it is not necessary to have excellent hearing acuity and was able to use visual cues to understand speech. The Board further recognizes that the Veteran's lumbar spine disability and radiculopathy symptoms limited his ability to traverse stairs, reach forward, bend forward, lift objects, and stand from the ground, and prevented him from performing work that required heavy lifting or prolonged sitting, standing, or walking for more than 30 minutes without a break. See February 2013 Hearing Transcript, pages 2-15; January 2014 VA examination; June 2015 Hearing Testimony, pages 2-17; November 2015 Hearing Testimony, pages 4-7; July 2016 C&P examination. However, the Board notes that none of the VA examiners of record found that the Veteran's lumbar spine disability or radiculopathy of the left and right lower extremities precluded him from obtaining or maintaining employment prior to November 12, 2015. See January 2014 VA examination; July 2016 C&P examination. Thus, the Board finds that the Veteran's service-connected lumbar spine disability and radiculopathy of the left and right lower extremities did not impose restrictions, which when considered collectively and independently, precluded him from obtaining or maintaining employment involving fewer physical demands that allowed him to change positions and get up and move around as needed. In this regard, the Board finds that the Veteran's service-connected disabilities did not preclude him from performing sedentary employment with reasonable accommodations, to include frequent positional changes from standing to sitting with frequent breaks and in environments where it was not necessary to have excellent hearing acuity prior to November 12, 2015. Sedentary work is defined as tending to spend much time seated; somewhat inactive; characterized by much sitting and little physical exercise; sitting; seated. See Oxford dictionary. In reaching this conclusion, the Board recognizes that the January 2014 VA examiner found that the Veteran was capable of performing parttime sedentary employment. However, the Board finds it significant that the VA examiner did not explain how the Veteran's service-connected disabilities prevented him from performing all forms of fulltime sedentary employment, to include positions where he could frequently change position and rest. To the contrary, the examiner reported that the Veteran was able to drive a car, had no difficulty with upper extremity fine motor coordination, and that his daily schedule included taking care of his dog and rabbit, light housework, and cooking. In addition, the Board notes that the January 2014 VA examiner also found that his lumbar spine disability and radiculopathy symptoms did not absolutely prevent him from an appropriate sedentary occupational position that allowed for frequent breaks and changes in position. See January 2014 VA examination. The Board has also considered McCarron's January 2016 employment evaluation. However, as noted above, McCarron did not proffer an opinion as to whether the Veteran was unable to obtain or follow any substantially gainful employment during the period on appeal prior to November 12, 2015. See March 2016 Correspondence. The Board further recognizes and has considered the April 2013 private orthopedic evaluation from Dr. Graf and the October 2024 vocational assessment from MacDillon. In this regard, although Dr. Graf found that the Veteran was 100 percent impaired by his service-connected lumbar spine disability, he did not explain how the Veteran's service-connected disabilities prevented him from performing all forms of employment. The Board further notes that Dr. Graf did not state that the Veterans urinary retention was associated with his service-connected lumbar spine disability and that, contrary to Dr. Graf's findings, the evidence of record does not reflect that the Veteran's lumbar spine disability was manifested by IVDS or that he experienced incapacitating episodes that required bed rest prescribed by a physician at any time during the period on appeal. See June 2013 Medical Treatment Record -Non-Government Facility. Similarly, the Board finds that MacDillon's findings that the Veteran's potential to become distracted and his inability to sustain concentration or retain information, would prevent him from meeting the requirements of securing or following substantially gainful employment at any skill or exertional level appears to be largely based on generalizations and assumptions about how the impairment described by the Veteran may affect individuals in like situations, rather than on facts and circumstances specific to the Veteran. Moreover, the Board finds MacDillon's reports that the Veteran had a documented history of weakness, instability, and falls related to his service-connected disabilities to be inconsistent with the evidence of record. In this regard, the Board finds that there is no evidence that the Veteran's service-connected disabilities caused instability or led him to fall during the relevant period. However, during a March 2012 VA examination for knee and lower leg conditions, the Veteran reported that his nonservice-connected left knee strain was manifested by intermittent pain, feeling as though his knee would give out, and occasional buckling. See November 2024 Medical Treatment Record - Non-Government Facility; February 2022 CAPRI. Thus, the Board finds that the April 2013 and October 2024 private medical opinions are inconsistent with, and at times directly contradicted by the contemporaneous medical evidence of record. As such, the Board finds that these opinions are outweighed by the more probative evidence of record, to include VA examination reports dated in February 2004, March 2012, January 2014, and July 2016. In addition, the Board finds that the Veteran's level of education did not render him unemployable, and finds that his symptoms, taken together, do not indicate that he was unable to obtain and maintain employment prior to November 12, 2015. To the contrary, the Board finds that the Veteran's experience as a manager and education level (some computer training even without a degree) would help qualify him for a less physical job, even with the need to frequently change positions and rest. Lastly, the Board acknowledges that SSA found the Veteran to be disabled under the Social Security Act due to the combined effects of his service-connected and nonservice-connected disabilities throughout the period on appeal. See, e.g., August 1991 Medical Treatment Records - Furnished by SSA. In this regard, the Board observes that SSA's legal criteria for assessing disability for Social Security benefits purposes differs in important respects from VA's framework for determining entitlement to a TDIU. Therefore, SSA determinations are not binding on the Board. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). However, the Board finds that the SSA decision supports the Board's conclusion that the Veteran's service-connected disabilities alone did not preclude him from performing all forms of sedentary work, to include positions where he could frequently change position and rest during the relevant period. Thus, while the Veteran's service-connected disabilities have caused some economic impairment, his assigned disability ratings contemplate his level of occupational impairment. A TDIU claim is not purely a medical question. Here, the Board has considered both the relevant medical evidence, as well as the non-medical evidence such as work history, education, and lay evidence. In summary, because the evidence is persuasively against finding that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities prior to November 12, 2015, the TDIU claim is denied. 2. Entitlement to an effective date prior to November 12, 2015 for the award of basic eligibility to DEA, pursuant to 38 U.S.C. Chapter 35, is denied. The Veteran seeks an effective date prior to November 12, 2015 for the award of entitlement to basic eligibility to DEA benefits under chapter 35. For purposes of eligibility to DEA benefits under Chapter 35, the child or surviving spouse of a veteran will have basic eligibility if the following conditions are met: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C. § 3510; 38 C.F.R. § 3.807(a). Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals. The age of the disabled person may be considered in determining permanence. 38 C.F.R. § 3.340(b). The criteria pertaining to the award of educational benefits provides that for effective dates assigned following the grant of benefits under Chapters 30, 31, 32, and 35 shall, to the extent feasible, correspond to the effective dates relating to awards of disability compensation. 38 U.S.C. § 5113. In a November 2018 rating decision, the RO granted entitlement to DEA under 38 U.S.C. chapter 35, effective November 12, 2015. See November 2018 Rating Decision - Narrative. However, for the reasons stated above, TDIU has been denied for the period on appeal prior to November 12, 2015. Accordingly, as the award of DEA benefits is predicated on the award of a permanent total disability, an effective date prior to November 12, 2015 is denied as the criteria have not been met. REASONS FOR REMAND 3. Entitlement to service connection for a cervical spine disability, to include on a secondary basis, is remanded. In September 2023, the Board, in pertinent part, remanded the Veteran's service connection claim to obtain an addendum medical opinion by an appropriately qualified examiner to determine the nature and etiology of the Veteran's cervical spine disability. Specifically, the Board asked the examiner to opine as to whether it was at least as likely as not that any diagnosed cervical spine disability was caused or aggravated by his service-connected degenerative disc disease of L5-S1. The Board further explained that permanent aggravation was not required and asked the examiner to provide rationale for any opinion rendered. See September 2023 BVA Decision. As noted above, VA obtained an addendum medical opinion in October 2023. After reviewing the evidence of record, the examiner opined that it was less likely than not that the Veteran's cervical spine disability was proximately due to, the result of, or aggravated beyond its natural progression by his service-connected lumbar spine disability. In support of his opinions, the examiner explained that, without a permanent change in posture, the Veteran's lumbar spine disability would not be expected to cause significant or chronic issues with his cervical spine. See October 2023 C&P examination. However, the Board finds that the October 2023 VA examiner provided the exact same rationale addressing causation and aggravation, rather than addressing each theory of entitlement independently. In this regard, causation and aggravation are independent concepts, and as such, nexus opinions must provide separate findings and rationales relating thereto. Atencio v. O'Rourke, 30 Vet. App. 74 (2018); El-Amin v. Shinseki, 26 Vet. App. 136, 138-40 (2013). VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that a remand is required to obtain separate findings and rationale for the requested causation and aggravation opinions. The matter is REMANDED for the following action: Obtain an addendum opinion by an appropriately qualified examiner to determine the nature and etiology of the Veteran's cervical spine disability. The examiner should provide the following opinion: Is it at least as likely as not that any diagnosed cervical spine disability was (i) caused or (ii) aggravated by the Veteran's service-connected degenerative disc disease of L5-S1. Please explain why or why not. The examiner should observe that permanent aggravation is not required. (Continued on the next page) ? If aggravation is found, the examiner should identify, to the extent possible, the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to the Veteran's service-connected degenerative disc disease of L5-S1. The Board notes that separate rationales should be provided for the causation question, and for the aggravation question. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Justis, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.